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March 14, 2008

Litigation Trends

What litigators already know: rocket dockets are the best bet; jury trials trump bench trials for awards; being plaintiff is advantageous. East Virginia and Western Wisconsin have the fastest rockets in their dockets, but offer only an average 50-50 chance of success. Mid-Florida and East Texas report the highest patent holder success rate, 67% & 55% respectively. Overall, East Virginia rates the top jurisdiction.

The rocket docket factor: there's a modest correlation between judicial efficiency and plaintiff success, both in percent and payoff. Time-to-trial starts the clock at complaint date to the first day of trial, bench or jury.

Success is considered liability + damages for the patent holder; a "loss" being a win for the alleged infringer.

In 2007, 58% of trials were from the bench, 42% jury trial, nearly the same as 2006. That reflects a marked shift toward jury trial from past decades.

Appeal changes the dice roll. Patent holders appeal their losses more often than alleged infringers - after summary judgment, 34% versus 23%; after trial: 57% versus 33%. Patent holders have better luck on appeal after trial, and from jury trials than bench trials, compared to summary judgment; conversely so, infringers.

At 71%, North Illinois takes the cake for decisions reversed or modified upon appeal.

Graphically it appears that patent assertions correlate to patent grants, but that masks the reality that there is often a lag of years between patent grant and assertion. There are orders of magnitude difference between grants and lawsuits, making the comparison more interesting than actually informative. So here we have an instance where statistics hide as much as they reveal.

Source: PriceWaterhouseCoopers

Patent Hawk can be the razor's edge for an alleged infringer, sharpening invalidity defenses successfully in over two-thirds of cases.

Next: the damages scene.

Posted by Patent Hawk at March 14, 2008 9:27 PM | Litigation


I find it very hard to believe that you get to trial in 1.71 years in the California Central District. This makes all of the analysis suspect.

Posted by: Steve Sereboff at March 15, 2008 8:34 PM